Harmon Carter, Jr. v. Eric K. Shinseki
2014 U.S. Vet. App. LEXIS 866
| Vet. App. | 2014Background
- Harmon Carter, Jr. sought VA benefits for a low-back disorder originally claimed as service-aggravated; prior Board denial (Sept. 2009) was the subject of a Court JMR in July 2010.
- New counsel (Vanhoose) entered appearance at the Court, joined the JMR identifying two specific Board errors: inadequate reasons for discounting private medical evidence and for rejecting lay statements.
- The JMR expressly instructed the Board to reexamine the record and seek any other evidence necessary; counsel had not yet received the claims file when the JMR was filed.
- VA sent a 90-day letter to the claimant and his former representative in Aug. 2010; counsel received the claims file (including the 90-day letter) in Dec. 2010 but submitted no new evidence or argument.
- The Board issued a Feb. 18, 2011 decision denying benefits, again discounting private medical opinions and lay testimony; Carter appealed to the Court raising three new arguments not raised to the Board on remand.
- The Court considered whether a JMR entered by counsel can limit the Board’s duty to search the record for issues reasonably raised, and whether Carter had adequate notice/opportunity to submit new material on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a JMR by attorney-represented appellant limits the Board’s duty to search the record for issues reasonably raised | Carter: Board must consider all issues reasonably raised by the record regardless of JMR terms; new theories may be raised to Court | Secretary: JMR tailors remand; Board need only address issues in JMR or any new arguments/evidence submitted on remand | Where counsel entered a JMR specifying issues and raised no new arguments on remand, the JMR’s terms are a factor in defining the Board’s duty; here the JMR preserved a full record review, so Board had duty to address issues reasonably raised by the record |
| Whether Carter reasonably raised a direct-service-connection theory such that the Board had to adjudicate it | Carter: in-service records (L-5 entry, fall) reasonably raise a direct-connection theory | Secretary: record and JMR framed claim as aggravation; evidence does not reasonably raise a separate direct-connection claim | Not reasonably raised: Board did not err in failing to adjudicate a direct-connection theory |
| Whether VA examination reports were inadequate and required VA to obtain clarification or to be rejected | Carter: May 2006/Nov. 2007 VA exams failed to consider lay separation statements and are inadequate | Secretary: VA examiners reviewed the record; exam reports are competent and Board can rely on them absent challenge | Not reasonably raised: Board did not err in relying on the VA exams; no obligation to sua sponte challenge them |
| Whether Savage required VA to seek clarification of the private physician’s report | Carter: Board should have sought clarification because private opinion’s foundation was unclear | Secretary: Savage applies only where clarification of a relevant objective fact is necessary and the private report is sole evidence on a material issue | Savage not triggered: other competent VA medical evidence addressed the issue; Secretary had no duty to obtain clarification |
| Whether counsel had adequate notice/opportunity to submit evidence on remand | Carter: misdirected 90-day letter and delay deprived counsel of meaningful opportunity | Secretary: counsel actually received the claims file (with 90-day letter) in Dec. 2010 and had opportunity but chose not to act | Board notice/opportunity adequate: counsel had actual receipt and time; failure to act was counsel’s choice; appeal timely filed upon actual receipt |
Key Cases Cited
- Maggitt v. West, 202 F.3d 1370 (Fed. Cir.) (Court has discretion whether to consider issues raised initially on appeal; exhaustion doctrine is case-specific)
- Robinson v. Peake, 557 F.3d 1355 (Fed. Cir.) (Board must consider theories reasonably raised by the record)
- Savage v. Shinseki, 24 Vet.App. 259 (Vet.App. 2011) (VA’s duty to seek clarification of private medical reports limited to missing objective, factual information)
- Forcier v. Nicholson, 19 Vet.App. 414 (Vet.App. 2006) (JMRs must give clear, specific instructions to the Board)
- Carbino v. West, 168 F.3d 32 (Fed. Cir.) (failure to include issues in principal filing may waive them)
- Hilkert v. West, 12 Vet.App. 145 (Vet.App.) (appellant bears burden to demonstrate error)
- Massie v. Shinseki, 25 Vet.App. 123 (Vet.App.) (exhaustion principles applied where counsel raised new theory on appeal)